Saturday, September 12, 2009

They Want Big Brother Out of Their Drinking Water

I don't know whether the editors of the NY Times were acting out of a sense of irony, but I found arresting the juxtaposition of the following two stories on the front page (of the web version; in the print version there's a front-page photo for the first story):

1) A report on the rally of anti-government protesters concerned about the size of government;

and

2) A report on the widespread under-enforcement or non-enforcement of the Clean Water Act, to the clear detriment of public health.

I suppose it's possible that the protesters want cuts in government programs other than clean water enforcement, but I doubt it. Economic libertarians have long taken aim at environmental protection laws generally, and the EPA in particular, as examples of what they regard as government overreaching.

It's tempting to dismiss this latest protest as more of the same from a vocal but mostly marginal group. Yet the anti-government sentiment is pretty clearly the only opposition on offer from the right these days, and it is no longer a fringe phenomenon. Consider that during Wednesday's oral argument in the Hillary the Movie case, Chief Justice Roberts characterized the contention that government can limit campaign speech by corporations for the benefit of shareholders who don't support the messages promoted by the corporations as resting on the claim that "big brother has to protect shareholders from themselves."

Barney Frank rightly refused to engage with an anti-health care reform protester who carried a poster of President Obama with a Hitler mustache. But when the Chief Justice of the United States compares campaign finance regulation co-sponsored by John McCain to Orwellian totalitarianism, there is reason to think that the hyperbole has gone mainstream.

16 comments:

The Hitler-mustache posters stuff has been debunked all over the place - those aren't members of the Right, but supporters of whacky perennial Democratic presidential candidate Lyndon LaRouche. They're against ObamaCare because they support single payer, not because they support the market. Frank's opponent specificlally was found to be a LaRouchie.

TBJ, I accept your factual correction but I don't understand the point of your objection. Do you deny that anti-government sentiment is the main organizing theme of the right these days? Do you claim that most of the people who turned out for the march in Washington were agents or dupes of Larouche? That CJ Roberts is such an agent or dupe???

That is hardly a fair description. The fact is that in many/most States it is easier to get put on the Democratic primary ballot than the Republican one. This is, generally, just a matter of money. So LaRouche runs in the Democratic Primary for President often. On the one occasion he was able to capture one or two primary votes, the DNC invalidated those votes stating he was not, in fact, a Democrat. LaRouche sued and lost.

I am sure Republicans would like it if the DNC recognized LaRouche as one of their own because then insane and publicly racists figures would not be unique to Republicans.

OK, we know the right are crazies, but this is not your area of particular expertise

Instead, I would like to hear more from you on how far you think the Supreme Court will go in the election law case (OK, you talked about this recently) and is there any chance they could hold an insurance purchase mandate unconstitutional (you blogged on this at some point, but not recently)? More to the point, under a theory of dynamic statutory (constitutional) interpretation, might they be emboldened by popular demonstrations of right-wing sympathy to do so? Indeed, under an Eskridgian analysis, might they not be justified in doing so?

Do you deny that anti-government sentiment is the main organizing theme of the right these days?

I agree. But would it not be fairer to call this libertarianism than to call it anti-government? If one characterizes it as anti-government, then it cannot be reasoned with; if it is libertarianism, then perhaps providing statistics about the effectiveness of public health programs and environmental protection laws would work; perhaps one can distinguish reasonable libertarian arguments in favor of individual rights and efficiency, like those of Adam Smith, from unreasonable ones that simply aim to destroy public goods and promote the interests of the super-rich. No one wants to drink polluted water, right? As a law professor, Mr. Dorf, you should know that if your opponent is an unreasonable libertarian, you have a slam-dunk argument!

"If one characterizes it as anti-government, then it cannot be reasoned with."

That's right (and correct). Hard to imagine how one might "reason" with birthers, deathers, and all the other err-ers.

"[P]erhaps one can distinguish reasonable libertarian arguments in favor of individual rights and efficiency, like those of Adam Smith, from unreasonable ones that simply aim to destroy public goods and promote the interests of the super-rich."

Indeed one presumably can. Note that we ought also distinguish between arguments in favor of individual rights, on the one hand, from arguments in favor of efficiciency, on the other. While wide enjoyment of some rights to which most of us are committed tends to promote efficiency in the wealth-growing sense that most users of the term appear to have in mind, enjoyment of other such rights tends very often to operate as a drag (thank heavens) on efficiency of that sort.

One reckons that the Court's Kelo decision promotes efficiency of a commonly endorsed kind, but that it does so at the expense of a right that is also of a commonly endorsed kind.

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